from the nicely-done dept

A few years ago, we wrote about how a guy named Dimitry Shirokov, with help from the law firm of Booth Sweet had taken on the "fathers" of copyright trolling in the US, Dunlap, Grubb & Weaver, who had formed an organization called US Copyright Group, which initiated the first round of mass copyright trolling in the US (before the likes of Prenda and others entered the space). Shirokov had tried to make his lawsuit a class action against the lawyers, claiming fraud and extortion. And while the class action part was unfortunately rejected, the case has ended with a victory for Shirokov, with the judge ordering DGW to pay $39,909.95 ($3,179.52 to Shirokov and the rest in attorneys' fees to Booth Sweet).

The money to Shirokov was a result of DGW basically caving (it has long since dropped its copyright trolling efforts), and offering to pay up to settle the case and close it out. The latest ruling was just about the attorneys' fees to pile on top. While Booth Sweet notes that the victory is bittersweet because they'd hoped for the class action to fly and because they'd sought a lot more in attorneys' fees, it is still a victory on the books against trolling, which hopefully will come in handy in other such cases.

from the follow-the-bounding-ball dept

Voltage Pictures, the maker of The Hurt Locker, was one of the first companies to bring ridiculous copyright trolling practices to the US, where they sue thousands of people based solely on a questionably-sourced IP address. In fact, last year, the company sued nearly 25,000 people in one shot for supposedly file sharing the movie. Of course, the goal is not to actually go to court on any of these cases. Instead, it's just about getting people to pay up -- and so these "companies" are adapting.. And, as TorrentFreak noes, it appears that Voltage Pictures, (with an assist from Dunlap, Grubb and Weaver -- the tiny DC law firm that started "US Copyright Group" to do these kinds of cases, but which has gone nowhere) hasn't learned not to do this any more. It's just suing another 2,514 people for sharing, pretty much guaranteeing that no kids ever want to work for them in the future. However, it's also learned a few other things -- including how to get around the fact that many ISPs are pushing back on these kinds of things. For example, while plenty of ISPs have fought back against these lawsuits, in this lawsuit, Voltage Pictures only sued users who were subscribers of Charter Communications. Charter has shown a willingness to hand over such data when asked. So one way to avoid having ISPs challenge you in court is to focus on the ISP least likely to challenge your notices. Also, the new lawsuit is filed in Florida, which seems to have become the breeding ground for these kinds of troll fights lately -- so apparently Voltage and Dunlap, Grubb and Weaver think that perhaps this case might last long enough for them to get enough names and get enough people to pay to make it worthwhile. It would be nice if the court were to kill off the subpoena and note that it appears to be an abuse of power again.

from the conduct-is-actionable,-it-seems dept

US Copyright Group was the first of the US-based copyright trolls, suing thousands of individuals in a single lawsuit, trying to get them to pay up (rather than going through an actual trial). US Copyright Group is really a front for a DC law firm, Dunlapp, Grubb & Weaver. One of its very first "big" lawsuits was against about 5,000 people for supposedly partaking in the sharing of Uwe Boll's Far Cry. Of course, as we had noted, there was a pretty big problem in the Far Cry lawsuit, in that the US copyright registration was filed too late for many of the accusations of infringement.

Partly on the basis of the registration problems, Dmitriy Shirokov (with the law firm Booth Sweet) sued US Copyright Group, DGW and its key lawyers for fraud, extortion and conspiracy back in 2010. DGW shot back angrily, claiming that it's perfectly fine for for lawyers to lie to the court, if it's part of the course of litigation:

"Although an attorney may be accused of defrauding opposing parties, knowingly committing discovery abuses, lying to the court, or purposely and maliciously defaming another individual, if it takes place during the course of litigation, the conduct simply is not actionable,"

Of course, the threats and extortion weren't actually "during the course of litigation." DGW also claimed that there was no "harm" for Shirokov, because he didn't settle, and thus hadn't paid up. DGW then went even further, asking for sanctions against Shirokov and Booth Sweet, claiming that it was actually them who were filing lawsuits for "improper purpose."

The court has now ruled in response to DGW's motion to dismiss, and it seems pretty clear that the judge is not impressed by DGW at all. The motion to dismiss was rejected and the class action lawsuit against the company moves forward.

Judge Boal recommended that the motion for dismissal be denied in significant part. The defendants had argued that Mr. Shirokov was not entitled to sue them at all, since he wised up before paying their demands, and his claimed injuries were out-of-pocket costs of investigating the threats. They claimed that the Noerr-Pennington privilege, an antitrust doctrine, prevented any liability. And they argued that lawyers and their clients have absolute immunity for even intentional torts, or in DGW’s words: “although an attorney may be accused of defrauding opposing parties, knowingly committing discovery abuses, lying to the court, or purposely and maliciously defaming another individual, if it takes place during the course of litigation, the conduct simply is not actionable.” Just think about that one for a minute.

Judge Boal thoroughly debunked each of those claims. The fees Mr. Shirokov incurred in investigating the trumped-up copyright claims constitute an injury-in-fact that gives him standing to sue. The Massachusetts litigation privilege does not apply to threats of litigation that are not seriously contemplated in good faith. And the Noerr-Pennington antitrust doctrine did not apply outside of antitrust law, and even the First Amendment right to petition isn’t an absolute protection for litigation threats.

It's important to note that, in this case, it's the specific issue of the non-registered copyrights that is key. That is, the lawsuit isn't about the general practice of copyright trolling -- but the fact that it was done using claims and demands that were not true (e.g., the statutory damages if found guilty of sharing, even though such statutory damages were not available for a work that hadn't been registered).

Along those lines, the court didn't completely side with Shirokov, saying that some of the racketeering and fraud charges should be dismissed. But, large parts of the lawsuit survive and will move forward -- which doesn't seem like a good thing for DGW or US Copyright Group. Perhaps, next time, they'll check the copyright registration before filing suit.

from the improper-joinder dept

The news that US Copyright Group has dropped yet another of its lawsuits isn't all that noteworthy at this point. This time, it was a lawsuit against people associated with 1,951 IP addresses, which USCG suggests were involved in unauthorized file sharing of the movie I Spit On Your Grave. This comes soon after USCG dropped their giant lawsuit concerning 23,238 John Does accused of sharing unauthorized copies of the movie The Expendables. What's interesting is the likely reason why: the two cases were given to the same judge.

As with the Expendables case, USCG doesnít give a reason why they chose to voluntarily dismiss the case. However, since this case was also appointed to Judge Robert Wilkins it doesnít seem far-fetched that they anticipated running into similar jurisdiction issues as they did in the Expendables case.

This follows a similar situation with another copyright troll, John Steele, who tried the same thing, after another case of his got assigned to a judge who scolded him for going on a "fishing expedition." Steele has since resorted to filing similar lawsuits in other jurisdictions.

The courts have had a few mixed rulings on this, with many, but certainly not all, rejecting the joining of thousands (or tens of thousands) of defendants for sharing the same content as being improper. However, a few judges have allowed the cases to "go forward," even though all the copyright trolls want is for subpoenas to go out so they can figure out who to send their "settlement" letters to.

There's a name for this filing and dropping of cases, with new filings in different districts: it's called forum shopping. And it's a sign of a problem.

With so many lawyers jumping into the copyright trolling game lately, using the same basic blueprint (if only they'd sue each other for infringement!), it would be nice if we could get a higher court to issue a bright line rule that said such a joining of totally unrelated parties is totally improper. That could cut off this whole shakedown game quickly. But until we get that, these copyright trolling operations will just continue forum shopping, hoping to find a judge who isn't hip to how they're just using the judicial system as a way to force people into paying money.

from the collateral-damage dept

Most of US Copyright Group's lawsuits haven't been going too well -- including the decision to completely drop the case for Nu Image, the producers of The Expendables. USCG's other "high profile" case, however, involves the movie The Hurt Locker, and it continues to move forward. While judges in other cases have been rejecting these mass "fishing trip" lawsuits, knowing full well that they're being used to shake down people to "settle" despite being outside the court's jurisdiction, it appears that USCG got "lucky" with the Hurt Locker case, in that the case was handed to Beryl Howell. Howell, of course, was an RIAA lobbyist not long before becoming a judge, which certainly calls into question her impartiality in such a case -- especially when her rulings seem to contradict just about every other judge who has received one of these mass lawsuits.

In this case, brought on behalf of producers Voltage Pictures, by US Copyright Group (really DC law firm Dunlap, Grubb and Weaver), 24,583 people were sued based on IP addresses. And while most courts have cut out those outside of their jurisdiction, Judge Howell seems to have no problem with USCG getting subpoenas sent all over the country. And, with so many people sued on such flimsy evidence, it's no surprise that many receiving notice from their ISPs of the subpoena are shocked and insist they have nothing to do with it.

Meanwhile, Nate Anderson has been collecting a bunch of the responses from people who insist they have no clue why they're being sued. Of course, as TorrentFreak points out, in such cases, it's probably a really bad idea to write to the court directly protesting your innocence, because that publicly reveals who you are -- something that USCG might not have known previously. Even worse, in this case, rather than recognize the ridiculousness of suing 24,583 people based solely on flimsy IP addresses, Howell is saying that these responses are meaningless until a trial actually begins -- by which point many of these same people will realize that it's probably cheaper to settle up than pay to have to defend themselves.

The sampling of letters, however, certainly suggests a fair amount of collateral damage from filing lawsuits on such weak evidence. While some may insist that (1) some of these people are lying or (2) they can just prove their innocence in court, I would suggest that you're not recognizing just how traumatic it can be to get sued, especially if you're not that familiar with the law and, indeed, have no clue why you're getting sued. It's exactly this situation that USCG and Voltage Pictures were counting on with this process, so kudos to Judge Beryl Howell for making the lives of a bunch of innocent people a living hell.

Here are just a few of the letters. More can be found at the link above:

The Pinestead Reef Resort in Traverse City, Michigan:

We object to the suit given the fact that we operate a Timeshare resort named Pinstead Brief Resort that is 46 units all of which have a Wi-Fi connection using our IP address. We have numerous users at various times and are unable to monitor or control what they are doing on the computer in their room... I can assure you that the movie was not downloaded from any of the 5 computers that we use in our office on a daily basis.

MidAtlanticBroadband Hospitality Services of Baltimore, Maryland:

MidAtlanticBroadband Hospitality Services is filing an objection to provide information as our information is irrelevant, as we are not the end-user nor do we have any information related to the actual usage of this IP address.

A woman named Sarah, no address given:

I am objecting to the disclosure and release of my identifying information by Charter Communications Inc. on the grounds that Iím not the owner nor have I ever owned the computer with the MAC IP address [sic] that they are claiming illegally downloaded the copyrighted work. When this download took place I was living in a college apartment with roommates and we all shared the wireless network. I had opened the account and my roommates each paid me a portion of the monthly bill since we all shared the same wireless network. When I contacted Charter Communications Inc. regarding the subpoena to inform them they had the wrong person named for the download they said it could have been anyone in the apartment complex and that I was named as a potential defendant due to my being the one that set up the account.

Ann from St. Louis, Missouri:

As a soon to be 70-year-old woman, I can assure the court that I have neither downloaded or distributed ANY copyrighted work as alleged in this lawsuit. Thank you for your consideration.

Rick from St. Louis, Missouri:

I did not download this movie. From a telephone conversation with Charter Communicationsí technical customer service I learned it is possible someone outside my home may have compromised the IP address and downloaded the movie without my knowledge.

Charter further advised me to place a lock on the wireless router to help prevent people from hacking into the system and using my IP address. This has now been done.

Take pay cuts over the past years, having a disabled wife and struggling to support a family, I do not have the money to hire an attorney to protect myself especially in this case where I did nothing wrong.

from the might-not-be-over-yet dept

One of the most high profile US Copyright Group lawsuits was for producers Nu Image, who made The Expendables movie, which ended up making over $100 million. For some reason, they thought that it would be a good strategy to then shake down a bunch of people who downloaded the movie. In fact, they sued an astounding 23,322 people. After first allowing such subpoenas to go out to identify who was behind those 23,322 IP addresses (though not necessarily behind any infringement), the judge realized that most of those people were not in the proper jurisdiction and dismissed 23,238 of the IPs from the lawsuit.

Now it appears that rather than go forward with the case against the remaining 84 IP addresses, the entire case has been dismissed voluntarily by Nu Image and USCG. That said, the dismissal is without prejudice, meaning that they can refile it. I'm wondering if they're working on another strategy to try to once again link up a lot more than 84 people. If, instead, Nu Image has realized that perhaps this isn't a smart strategy, that would be nice to hear... but until there's confirmation on that front, it seems likely that it's just looking for a more efficient way to sue its fans.

from the here-we-go-again dept

US Copyright Group was the first US operation to really dive into the whole copyright trolling business of suing thousands of people based on weak evidence of infringement and then offering to "settle" for less than it would cost to go to court. It was known that US Copyright Group was a front for DC-based law firm Dunlap, Grubb and Weaver, and a few months later it came out that US Copyright Group was actually a combined effort between Dunlap, Grubb and Weaver and a German "anti-piracy" tracking company named GuardaLey, who had set up similar partnerships elsewhere.

However, as TorrentFreak reveals, in a lawsuit filed against US Copyright Group over its legal strategy (more than 100,000 sued!), it appears that GuardaLey was the real driving force behind US Copyright Group... and its technology for identifying "pirates" has been found wanting (at best). A German court in a similar case found GuardaLey's tracking software to not be very good at actually identifying infringement, since it fails to determine if any work is actually shared. Now, though the RIAA may be pushing for the idea that "making available" equals distribution, some courts have already disagreed. If it can't show actual uploads or downloads, USCG may have a tough time proving infringement.

Even more troubling are claims that GuardaLey set up honeypots to try to get IP addresses to sue. If there's a honeypot, then, as long as the content is accurate, the download is authorized since the companies doing such copyright trolling usually have licenses over the content. Or, if the file is fake, then there's no infringement, since the actual file wasn't downloaded (let alone available).

Of course, we see this kind of thing all the time, with copyright supporters insisting that all you need is an IP address to identify someone. It's a lot more complicated than that, and making that assumption while going after 100,000 people suggests that any nuances around IP addresses are completely ignored.

from the nicely-done dept

While many courts had pretty clearly rejected attempts by various mass lawsuit filing "anti-piracy" law firms to sue a ton of people in a single lawsuit, we were surprised and dismayed back in May to see one judge allow subpoenas to go out on all 23,322 IP addresses sued by US Copyright Group over file sharing on the movie The Expendables. Considering how many courts had challenged such bundling, it was truly surprising that this court allowed it. However, after making that initial ruling, the judge noted that "several issues... have recently come to light regarding this case," and changed his mind. He pointed to the serious jurisdictional questions, considering that most of those sued were probably not in the DC area and ordered USCG to show why the jurisdiction was proper.

from the not-so-fast dept

We recently noted that a judge in one of the biggest mass copyright infringement lawsuits ever filed, representing 23,322 potential infringers of the movie The Expendables, had allowed the lawyers at US Copyright Group to issue subpoenas on those people in order to properly serve them with the lawsuit. However, it appears the judge is reconsidering -- perhaps because lots of people have since raised the point that these efforts often appear more like a shakedown than any legitimate lawsuit, and the judge has taken notice. After saying that "several issues... have recently come to light regarding this case", he goes on to berate US Copyright Group lawyers for failing to have served a single person out of the 23,322.

The judge also seems to have discovered (a bit late, but better late than never) the jurisdictional issue that most other judges who have been dealing with these cases have noted, in that the vast majority of those sued almost certainly do not live in the region of the DC district court, and this troubles the court:

The Court hereby ORDERS Plaintiff, if it intends to pursue the previously filed motion for expedited discovery, to show cause as to why venue and joinder is proper for all 23,322 putative defendants in this case. Alternatively, Plaintiff may seek leave to amend its complaint to name a certain subset of defendants and file a new motion for expedited discovery, addressing both legally and factually why venue and joinder is proper as to each defendant, and how Plaintiff intends to establish the same. In either case, Plaintiff shall submit a proposed discovery plan that: 1) sets forth a time certain for which it seeks to pursue non-party discovery on an expedited basis; and 2) outlines how Plaintiff intends to serve each defendant within 120 days of filing the amended complaint pursuant to Rule 4(m) or proposes any extensions Plaintiff may seek in order to effectuate service on all named defendants.

Read through the whole order. This is a judge who is not amused. This statement being the key one:

The Court finds it inappropriate and a waste of scarce judicial resources to allow and oversee discovery on claims or relating to defendants that cannot be prosecuted in this lawsuit.

It seems that more and more judges are beginning to recognize these cases for what they really are. Attempts to use the court system as a threat-based business model, rather than as a venue for resolving actual legal issues.

from the time-to-put-the-hurt-locker-on-these-kinds-of-lawsuits dept

While US Copyright Group (really DC-based law firm Dunlap, Grubb & Weaver) had some early setbacks in its attempt to sue thousands of file sharers, clearly hoping that most would just pay up rather than fight, it appears to be trying again, and going bigger each time. Even as more and more judges have been rejecting attempts to lump together thousands of individuals in such lawsuits, USCG keeps trying to go bigger. It set a record a few weeks ago, going after 23,322 IP addresses for the producers of the movie The Expendables, and now USCG has expanded its existing lawsuit for the producers of Hurt Locker to go after 24,583 BitTorrent users. Perhaps it's a last gasp effort by USCG before the party inevitably ends and judges bring such attempts to use the judicial system as a shakedown tool to an end.